Petition — Rodriquez-Martinez v. United States

Gupreme Court, tt. a. ‘

FILED }

MAR 4 1980 1

_MICHARL RODAK, JR., CLERK

In the

Supreme Court of the United States

Octoser TERM, 1979

Nn. 69-1503

HECTOR G. RODRIGUEZ MARTINEZ, ET ALS.,

PETITIONERS,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Satvapor ANTONETTI

Harry AnpuzeE Montano

Car os V. Garcia GUTIERREZ

Cartos Maneuvat Lopez

JoHN Garcia

JamMEs A. Toro

Harvey B. Nachman

P.O. Box 9949

Santurce, Puerto Rico 00908

Attorneys for Petitioners

Biaachard Press, Inc., Boston, Mass. — Law Printers

- INDEX

Jurist eS | Nt eh PISO SAG iriadh

Constitutional Provision Involved ..................

Questiond Preneied 220. ernie 4 SSSR Bo.

I. Is Retrial Barred by the Double J jeupardy Clause

of the Fifth Amendment to the Constitution of

the United States When a Mistrial Is Declared

Because the Prosecutor’s Remarks During ‘Clos-

ing Argument Infringed Upon the Defendants’

Right To Remain Silent. ....................

II. Are Appellants’ Due Process Rights Violated

i When They and the District Judge Relied on a

Longstanding Rule Promulgated by the Court

of Appeals for the First Circuit and the Latter

Court Changes the Rule a Posteriori on Appeal.

Statement of the Case ........0 0.000.200 00,

Reasons for Granting the Writ .....................

I. Certiorari Should Be Granted Pursuant to the

Provisions of 28 U.S.C. §1254(1) and Rule 16(b)

of the Rules of the Supreme Court Because The

Decision of the Court of Appeals Is Contrary to

the Decisions of This Honorable Court Which

_ Hold That the Double Jeopardy Clause Bars a

Retrial After a Mistrial Provoked by Bad Faith

Governmental Action Directed To Prejudice

EO ae ae oe

II. The Court of Appeals So Far Departed From

the Accepted and Usual Judicial Rule Promul-

gated by the Court of Appeals Itself as To Call

for an Exercise of This Court’s Power of Super-

vision in That It Changed a Prophylactic Rule

of Almost Ten Years’ Standing After It Had

Been Relied Upon by Appellants and the District -

Coert: ... (8): Ne nN ha a dab i in a

ii Index

3 | Page

I is de gk che ae Lee bea 5

. I. Retrial of Petitioners Is Barred Because the

Prosecutor’s Comments, Made in Bad Faith and

With Intent To Prejudice, Infringed Unen De-

fendants’ Right To Remain Silent. ........... 5

II. Petitioners’ Due Process Rights Were Violated

When the Court of Appeals Changed a Rule of

Judicial Procedure Which Had Been Relied

Upon by the District Court................... 8

COON PPG as Sos get a A ead. 10

Appendix A—Opinion of the Court of Appeals for the

OME os es on Cs acecty Ss 11

Opinion, Including Footnote to the Opin-

ion of the Court of Appeals for the

Beree CHU 8k he ee wane kale: 15

Appendix B—Opinion of the District Court for the Dis-

trict of Puerto Rico ................ 17

Appendix C—Order Denying Stay of Mandate to Peti-

eS Sa eae > ae eee 25

TABLE OF CITATIONS

Cases

Lee v. United States, 432 U.S. 23 (1977) ............. 6

Lussier v. Gunter, 552 F.2d 385 (1st Cir. 1977) ...... 8, 9

_ Morgan v. Hall, 569 F.2d 1161 (1st Cir, 1978), cert.

denied, 437 U.S. 910, 98 3'S.Ct. 3102 SECO bidias sii". 8

United States v. Dinitz, 424 U.S. 600 (1976) .......... 6

United States v. Flannery, 451 F.2d 880 (1st Cir. 1971)

4, 5, 6, 7,9

United States v. Goldman, 563 F.2d 501 (1st Cir. 1977),

cert, dented, 434 U.S. 1967 (1977) ................ 8

United States v. Medina, 455 F.2d 209 (1st Cir.1972).. 8

' United States v. Scott, 437 U.S. 82 (1978) ..... Sintec 6

acl — »

Index

Constitutional Provisions

U.S. Constitution, Amendment V .............

Statutes

Oe A Oe |

ARERR ESRF ote gan

Rule 16(b) of the Rules of U.S. Supreme Court

In the

Supreme Court of the United States

Octoser Term, 1979

No.

HECTOR G. RODRIGUEZ MARTINEZ, ET ALS.,

PETITIONERS,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The petitioners, Hector G. Rodriguez Martinez, Moises

Benmaman, Zoraida Quintana De Lara, Frederic J. Gon-

zalez, Walter Nieves Maldonado, Jesus Rivera Otero and

Emilio Ramirez Kohl, pray that a writ of certiorari issue

to review the judgment of the United States Court of

Appeals For The First Circuit entered on the 8th day of

January, 1980, and the opinion of the Court of Appeals

For The First Circuit denying reconsideration while modi-

fying its prior decision which was entered on February 4,

1980. Both of these decisions affirmed the decision of the

United States District Court For The District of Puerto

2

Rico entered on the 23rd day of July, 1979, which refused

to dismiss this action against all petitioners because of

former jeopardy. |

Opinions Below

The opinions of the court below were not reported, and

are included in the Appendix.

Jurisdiction

The final judgment on rehearing was entered on February

4, 1980. The jurisdiction of this Court is invoked under

the provisions of 28 U.S.C. §1252(1).

Constitutional Provisions Involved

AMENDMENT V

No person shall be held to answer for a capital or other-

wise infamous crime, unless on a presentment or indictment

of a Grand Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be sub-

ject for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process or law; nor shali

private property be taken for public use, without just

compensation.

Questions Presented

I. Is Retrial Barred by the Double Jeopardy Clause of

the Fifth Amendment to the Constitution of the United

States When a Mistrial Is Declared Because the Prosecu-

3

tor’s Remarks During Closing Argument Infringed Upon

the Defendants’ Right To Remain Silent?

II. Are Appellants’ Due Process Rights Violated When

They and the District Judge Relied on a Longstanding Rule

Promulgated by the Court of Appeals For The First Cir-

cuit and the Latter Court Changes the Rule a Posterior

on Appeal?

Statement of the Case

Prior Proceedings:

On June 7, 1979, during the prosecutor’s summation in

a case entitled United States v. Hector G. Martinez Rodri-

guez, Et Al., a mistrial was declared. On June 12, 1979,

the district court ordered a new trial and defendants timely

moved to dismiss the indictment on the ground of double

jeopardy. The motion was denied on July 23, 1979 and an

appeal was taken to the United States Court of Appeals

for the First Circuit. The Court of Appeals summarily

affirmed the decision by a per curiam order entered on

January 8, 1980. A timely petition for rehearing was denied

on February 4, 1980, but the Court of Appeals modified its

former opinion by adding a footnote.

Relevant Facts:

Defendants had been charged with perjury, obstruction

of justice and conspiracy to commit perjury and obstruct

justice. The charges revolved about alleged grand jury

testimony concerning ‘‘kickbacks’’ to union officials for

medical services. It was also alleged that hospital records

were altered prior to submission to the grand jury. During

the trial, the government relied heavily upon the testimony

of two former associates of the defendants.

At the end of the lengthy trial, the prosecutor in summa-

tion referred to the testimony of these key witnesses as

reliable becav~* they were people who ‘‘knew’’ because they

4

‘‘were there’’. Later on, the prosecutor referred to this

testimony as ‘‘uncontroverted’’. There was no doubt that

only the defendants who were the other people who ‘‘were

there’’ were the only persons who could have controverted

this testimony. The defendants did not testify at trial and

the prosecutor’s statement was an undisguised attack on

the defendants’ silence.

Noticing that the trial judge did not intervene, counsel

for defendants asked for permission to approach the bench

to bring the prosecutor’s misconduct *o the court’s atten-

tion.

After verifying that in fact the prosecuor had made the

improper remark, the court, referring to a decision of

the Court of Appeals dealing with this situation but not

having the case at hand and not knowing the effect of it,

the trial judge stated ‘‘Are you asking for a mistrial?’’

and was told by a counsel ‘‘Yes, your Honor, I am’’.

Immediately, another counsel advised the trial court of its

alternatives and the judge ordered a brief recess. With the

aid of defense counsel, the trial judge found the rule of the

Court of Appeals in United States v. Flannery, 451 F.2d 880

(ist Cir. 1971).

After the recess, and government’s argument, defense

argued that the focus of the court was being diverted from

the reliance that defense had made on the Flannery rule.

Defense argued that it was so important to follow what

the court said in Flannery ‘‘that from now on, from now

on this is going to be grounds for reversal. And we are

going to establish one single exception and that single

exception is going to be valid only when the court, using its

full authority as the judiciary arm of the government, as

the arbitrator between the parties, interjects immediately.’’

The court was further urged ‘‘.. . the First Circuit says

that it does this because it does it in its role as a super-

visory power over the courts of this district.’’

5

The court itself ruled that ‘‘. . . it is presumed that

counsel for the defense have read the case of Flannery

where it says, hereafter as to cases tried after the date

of this opinion, when it is apparent on the record that

there was no one other than himself whom the defendant

could have called to contradict the testimony, we shall not

endeavor to weigh prejudice. They don’t care to weigh

prejudice. They are going to say this: We shall rule it

prejudicial as a matter of law.’’

Reasons for Granting the Writ

I. Certiorari Should Be Granted Pursuant to the Pro-

visions of 28 U.S.C. §1254(1) and Rule 16(b) of the Rules

of the Supreme Court Because the Decision of the Court

of Appeals Is Contrary to the Decisions of This Honorable

Court Which Hold That the Double Jeopardy Clatise Bars

a Retrial After a Mistrial Provoked by Bad Faith Govern-

mental Action Directed To Prejudice Defendants.

II. The Court of Appeals So Far Departed From the

Accepted and Usual Judicial Rule Promulgated by the

Court of Appeals Itself as To Call for an Exercise of

This Court’s Power of Srpervision in That It Changed a

Prophylactic Rule of Almost Ten Years’ Standing After It

Had Been Relied Upon by Appellants and the District

Court. 7

Argument

I. Rersray or Petitioners Is Barrep Because THE ProsEcu-

ToR’s ComMENTS, Mave 1n Bap Fait anv Wiru Inrent

To Presupicz, Inrrincep Upon Derenpants’ Ricut To

Remain SI.ent. ‘

During closing argument at the end of a month-long trial

in this case, the prosecutor made a comment which the

court, after a recess, found in violation of the rule set forth

6

by the Court of Appeals for the First Circuit in United

States v. Flannery, supra, which forbids prosecutors from

arguing that evidence against a defendant is ‘‘uncontro-

verted’’ when only the defendant could controvert that

evidence by taking the stand.

A mistrial was then ordered by the Court, the case was

reset for trial and defendants’ plea of double jeopardy

was rejected.

The Court of Appeals affirmed the district court’s finding

that the comment, in context, was not made in bad faith

and was not serious so as to assure a conviction. The

comments were characterized by the Court of Appeals as

an act of negligence permitting a new trial.

The Court of Appeals also stated that a new trial would

be barred only if the prosecutor’s error stemmed from bad

faith, an effort to harrass or prejudice, or an attempt to

provoke a mistrial, citing this Honorable Court’s cases of

United States v. Scott, 437 U.S. 82, 94 (1978) ; Lee v. United

States, 432 U.S. 23, 33-34 (1977) and United States v.

Dinitz, 424 U.S. 600, 611 (1976).

The underlying principle in double jeopardy cases is

the preservation of the defendants’ ‘‘primary control over

the course to be followed in the event of [such] error.’’

Dinitz, supra, at 609, and only when the prosecutor’s action

is such that it prevents such control or makes defendant’s

choice meaningless will a retrial be barred.

While the comments were characterized by the trial court

as not made in bad faith and not too serious as to assure

a conviction when it denied the motion to bar a retrial,

nevertheless during argument the same court conceded:

‘*We all agree that the remarks were serious as to the

infringement of the defendants’ Fifth Amendment

right to remain silent .. .’’ ;

7

When it released the jury, the court stated:

‘¢. .. probably your minds are tainted, are affected in

such a way that you are not able to render a fair and

just verdict.’’

It is petitioners’ contention that comments so character-

ized by the court at the time of trial, assured a conviction

and were highly prejudicial so as to bar retrial.

That they were made in bad faith and were more than

mere negligence, is borne out by the fact that they were

made in complete disregard of the clear rule set forth by

the Court of Appeals for the First Circuit.

The misconduct complained of here was the prosecutor’s

deliberate and undisguised comment on the rights of the

accused to remain silent. That such comment is severely

prejudicial, and that such a comment could be motivated

by nothing short of intentional misconduct or gross negli-

gence is conclusively established by the existence of the

decision in United States v. Flannery, supra. In Flannery,

the Court of Appeals for the First Circuit, exercising its

supervisory authority over t..e court within its jurisdiction,

-repeated the ‘‘obvious conclusion’’ that such comments are

prejudicial and unconstitutional, and held that in all future

cases arising in the First Cireuit, such comments would be

held prejudicial as a matter of law. 451 F.2d at 882. The

per se rule adopted in Flannery was necessitated because

‘‘government attorneys, either uninstructed or unmindful

of their instructions’’, id., had persisted in ignoring the

oft-repeated rulings of the court on the defendants’ consti-

tutional right to remain silent. Were the instant case to

have arisen before or immediately after Flannery, the

prosecution’s comments could be explained by understand-

able, though reprehensible, neglect in failing to keep abreast

of the law. But, faced with a decision asserted and re-

asserted for nearly a decade, holding that comments such

8

as these are prejudicial per se, see, e.g., Morgan v. Hall,

569 F.2d 1161, 1167 (1st Cir. 1978), cert. denied, 437 U.S.

910, 98 S.Ct. 3103 (1978); United States v. Goldman, 563

F.2d 501, 504 (1st Cir. 1977), cert. denied, 434 U.S. 1967

(1977) ; Lussier v. Gunter, 552 F.2d 385, 389, fn. 2 (1st Cir.

1977), cert. denied, 434 U.S. 854 (1977); United States v.

Medina, 455 F.2d 209, 211 (1st Cir. 1972), it is impossible

to conceive how such comment could have been made unless

the prosecution was grossly negligent or intent on sabotag-

ing its own case.

The sequence of events at the trial evinced a clear intent

by the prosecutor to make the unwarranted comments

because:

a) The prosecutor was reading his summation from

a prepared written text;

b) The prosecution had requested an instruction that

the jury might consider defendants’ failure to call certain

witnesses, which request was denied by the district court

on the grounds that since defendants had presented no

evidence and had not taken the stand, such an instruction

would be unduly prejudicial ;

ec) The prosecution argued that the comment was

proper and was called for in the prosecutor’s manual.

II. Perrrioners’ Dur Process Ricuts Were VI0LATED

Wuen tHe Court or Apprats CHANGED a RuLE OF

JuproraL Procepure Wuicn Hap Bren Rewiep Uron

BY THE District Court.

The district court relied upon a line of cases of the

Court of Appeals for the First Circuit which set forth

the prophylactic rule that any reference by prosecutors to

the uncontroverted nature of the evidence (where only the

defendant could have controverted the evidence) would be

considered prejudicial per se and would resuit in reversal

9

of any conviction. As the sole exception to the rule requir-

ing reversal, the Court of Appeals held that reversal could

be avoided only where the court, immediately and sua

sponte, interrupts the argument, instructs the jury fully on

defendants’ right to remain silent and the jury’s obligation

not to draw unfavorable inferences and, in addition, states

to the jury that the United States Attorney was guilty of

misconduct. United States v. Flannery, supra, Lussier v.

Gunter, supra.

Based on Flannery and Lussier, supra, the district court

declared a mistrial.

In its memorandum and order entered in this case on

February 4,~1980, the Court of Appeals stated that the

sua sponte requirement of Flannery and Lussier did not

really mean sua sponte and that prompt curative instruc-

tions could be given either by the court on its own initi-

ative, or prompted by counsel.

In fact, the Court of Appeals modified the rule a pos-

teriort. The district court applied the rule as it stood at

the time of trial.

Had counsel for petitioners not alerted the trial court

to the prosecutor’s improper remarks, any of the petitioners

who might have been convicted after trial, would have

had their convictions automatically reversed on appeal by

invoking Flannery. The mistrial provoked by the prosecu-

tor’s violation of the Flannery Rule should have resulted

in an end to the prosecution, had not the Court of Appeals

changed the rules of the game, after the fact.

This departure from a long-standing course of judicial

conduct violated petitioners’ rights to due process of law

and calls for an exercise of this Court’s power of super-

vision over lower federal courts.

The Court of Appeals erroneously denied petitioners’

appeal in spite of a clear record showing deliberate prosecu-

torial misconduct, infringing upon petitioners’ right to

remain silent.

10 11 omg)

APPENDIX A

Conclusion

This Honorable Court should issue a writ of certiorari e

to the Court of Appeals of the First Circuit ordering that United States Court of Appeals

court to order the United states District Court for the ° ° 7

District of Puerto Rico to dismiss the indictment against For the First Circuit

ain areidaths | No. 79-1394.

Respectfully submitted, Unrrep Stares or AMERICA,

APPELLEE,

v.

Mo1ises BENMAMAN,

DEFENDANT, APPELLANT.

Satvapor ANTONETTI

Harry Anpuze Montano

CarLos V. Garcia GUTIERREZ

Cartos Maneuat Lopez No. 79-1399.

Joun Garor

James A, Toro

Harvey B. Nachman

P.O. Box 9949

Santurce, Puerto Rico 00908

Attorneys for Petitioners

Untrep States or AMERICA,

APPELLEE,

v.

Hector G. RopriguEz-MartTINEz.

DEFENDANT, APPELLANT.

-No. 79-1400.

Unrrep States or AMERIOA,

APPELLEE,

v.

Zornaiwa Quintana De Lara,

DEFENDANT, APPELLANT.

No. 79-1401.

Unrtep States or AMERICA,

APPELLEE,

v.

FREDERICK J. GONZALEZ,

DEFENDANT, APPELLANT.

12

No. 79-1402.

Unttep Staves, or AMERICA,

APPELLEE,

Vv.

Wa ter Nreves-Mauponapo,

DEFENDANT, APPELLANT.

No. 79-1403.

Unrtep States or AMERICA,

APPELLEE,

v.

Jesus Rivera Oren,

“~ - DEPENDANT, APPELLANT.

No. 79-1509.

Unitep States or AMERIOA,

APPELLEE,

v.

Eminio Ramirez Kou,

DEFENDANT, APPELLANT.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hernan G. Pesquera; U.S. District Judge]

Before

Corrin, Chief Judge,

CAMPBELL, Circuit Judge,

Bownsgs, Circuit Judge.

Harry Anduze Montano, Salvador Antonetti, Carlos M. Mangual

Lopez, James A. Toro, Carlos V. Garcia Gutierrez, John Garcia,

and Harvey B. Nachman, on brief for appellants.

Julio Morales Sanchez, United States Attorney, Pedro J. Durand,

Special Attorney, Department of Justice, William C. Bryson and

ie J. Lynam, Attorneys, Department of Justice, on brief for

appellee.

—_

13

January 8, 1980

Per Curiam. Contrary to the repeated misrépresental

tions in appellants’ brief, the transcript in this case demon-

strates that defendants moved and pressed for a mistrial

over the government’s objection. The district court granted

the motion reluctantly and only after much deliberation:

In such circumstances, the Double Jeopardy Clause bars a

new trial only if the prosecutor’s claimed error stemmed

from bad faith, an effort to harass or prejudice, or an

attempt to provoke a mistrial. United States v. Scott, 437

U.S. 82, 94 (1978) ; Lee v. United States, 482 U.S. 23, 33-34

(1977) ; United Statesa v. Dinitz, 424 U.S. 600, 611 (1976).

Here the district court supportably found ‘‘that the com-

ment made by the prosecuting attorney in its context was

not made in bad faith and was not so serious as to assure

a conviction.’’ The comment was therefore the kind of

‘fact of negligence,’’ Lee, supra, 432 U.S. at 34, permitting

a new trial.

Pursuant to 1st Cir. R. 12, the order of the district court

is summarily affirmed.

14

United States Court of Appeals

' For the First Circuit

B

'.

No. 79-1394.

&; Unrtep States or AMERICA,

be, APPELLEE,

v.

Moises BENMAMAN,

DEFENDANT, APPELLANT.

No. 79-1399.

. Unirep States or AMERICA,

APPELLEE,

v.

Heoror G. Ropricvez-Martinez,

DEFENDANT, APPELLANT.

No. 79-1400.

Unitep States or AMERICA,

APPELLEE,

v.

Zonarwa Quintana De Lara,

DEFENDANT, APPELLANT.

No. 79-1401.

Unrtep States or AmEnica,

APPELLEE,

v.

FREDERICK J. GoNZALEz,

DEFENDANT, APPELLANT.

15

No. 79-1402.

Unrrep States or AMERICA, -

APPELLEE,

v.

Waurer Nieves-Mawponapo,

DEFENDANT, APPELLANT.

No. 79-1403.

Unirep States or AMERICA,

APPELLEE,

v.

Jesus Rivera OTero,

DEFENDANT, APPELLANT.

No. 79-1509. |

Unitep States or AMERICA,

APPELLEE,

v.

Emimio Ramirez Kou,

DEFENDANT, APPELLANT.

MEMORANDUM AND ORDER

Entered February 4, 1980

Upon consideration of the petition for reconsideration,

the same is hereby denied.

It is further ordered that the opinion of January 8, 1980

in this case be amended by appending the following foof-

note to the last word of line 16. _

* The district court granted a mistrial in the belief that it

had not complied with this circuit’s requirement of a prompt

curative instruction where a prosecutor has commented on &

defendant’s failure to testify. See United States v. Flannery,

451 F.2d 880, 882 (1st Cir. 1971). In Lussier v. Gunter, 552

F.2d 385, 389 n.2 (1st Cir.), cert. denied, 434 U.S. 854 (1977),

we declined to extend to state habeas corpus cases the Flan-

mnery rule that such an uncorrected comment was an auto-

matic ground for reversal. In dicta, we stated that in Flan-

mery we had ‘‘announced that in future cases we would

16

reverse a conviction where, after a prosecutorial comment

on a defendant’s silence, the trial judge did not immediately

and sua sponte interrupt the argument to admonish the prose-

cutor and instruct the jury.’’ 552 F.2d at 389 n.2. In the

present case, the trial judge understood this language to pre-

clude a legally effective curative instruction where counsel,

rather than the court sua sponte, noticed the prosecutor’s

comment. We wish to make it clear that sua sponte action is

contemplated under Flannery only where counsel has failed

to object or make a request; the prosecutor’s misconduct can

be cured by a prompt and proper instruction whether rend-

ered sua sponte or in response to counsel’s objection or request.

When speaking in Lussier v. Gunter of the need to interrupt

the argument sua sponte, we merely meant to repeat what was

said in Flannery, to the effect that the prosecution’s mis-

conduct calls for prompt curative instructions which must

be given whether or not counsel thinks to ask for them.

It is further ordered that the opinion as amended be

circulated to the judges of this circuit.

By the Court:

Dana H. Gatuvup, Clerk.

By (s) Franots P. Scicuiano

Chief Deputy Clerk.

(ec: Messrs. Bryson, Antonetti, Toro, Mangual Lopez,

Garcia-Gutierrez, Anduze Montano, Nachman, Visconti,

and Garcia. |

17

APPENDIX B

In tHE Unirep States District Court

For tue District or Purrto Rico

Cr. No. 78-185

Unitep States or AMERICA

v.

Hector Ropricurz MARTINEZ, ET AL

OPINION AND ORDER

The defendants herein are charged with having con-

spired, 18 USC 371, ‘‘to corruptly endeavor to influence,

obstruct and impede the due administration of justice by

delivering and causing to be delivered to the federal grand

jury documents and records of Hospital Sagrado Corazon

which contained false statements [18 USC 15093] and to

knowingly make false material declarations while under

oath as a witness before the federal grand jury [18 USC

1623]’’. All of the defendants are charged in the conspiracy

count, and separate counts have been charged to each de-

’ fendant, or defendants, for the substantive offenses, 18

USC 1503 and 1623.

For a period of approximately five weeks of trial (from

May 8, 1979 to June 7, 1979) the government presented

its evidence. At the end of the government’s case the

defendants opted not to present any evidence and relied

on the burden imposed upon the government to prove all

elements of the offenses charged beyond a reasonable

doubt. During summation, the prosecuting attorney re-

ferred to the testimony given by two of the government’s

witnesses (the unindicted co-conspirators) as being un-

controverted.! The statement was not heard by the Court;

1 See transcript of June 7, 1979, pages 13-14 wherein the Special

Prosecuting Attorney stated that:

18

however, counsel for the defense approached the bench

and informed the Court that the government’s comment

was a ‘“‘highly impermissible’’ statement, as the same con-

stituted an unconstitutional transgression of defendants’

right to remain silent. Counsel for the defendants re-

quested that a mistrial on account of the government’s

action be ordered or in the alternative, that a curative

instruction be given and that the Court admonish govern-

ment’s counsel for said misconduct. The Court was aware

at the time of a First Circuit decision on the point raised

hy defendants’ counsel but could not remember the reme-

dies provided. in the same. Therefore, the Court recessed

in order to properly research the problem. The researéh

was done to a great extent with the aide of defendants’

counsel since the library facilities at the Federal Judicial

Center in Hato Rey (where the Court has convened due

to construction work being performed at the Old San Juan

Courtroom) are very limited.

The Court, after reading United States v. Flannery, 451

F2d 880 (1st Cir., 1971) and its progeny? reconvencd the

proceedings and heard arguments by both the govern-

ment’s attorneys and the defense counsel regarding the

*‘On March Ist, 1978, and again falsely testified as to the

board meeting which never took place. That he had not

signed all the receipts at the same time or during August

of 1977, that he was not present when other doctors signed

the receipts and he also referred to the receipts which he had

signed, which falsely represented tke receipt of cash for

back salaries.

The testimony of Dr. Roura and Dr. Carrasquillo which

has not been controverted clearly shows us that these state-

ments were not true. And the receipts falsely show what

they were purporting to show, that is payment for the back

salaries.’” (Emphasis ours)

3 United States v. Medina, 455 F2d 209 (1st Cir., 1971); U. 8. v.

Kubitsky, 469 F2d 1253 (1st Cir., 1972); U. 8. v. Parnkoff, 535

F2d 661, 668 (1st Cir., 1976); Lussier v. Gunter, 552 F2d 385

(1st Cir., 1977).

19

defendants’ request for a mistrial. The government con-

tended that a cautionary instruction would suffice, but de-

fendants’ counsel argued strongly in favor of a mistrial.°

The Court expressed its concern over such a drastic measure

as declaring a mistrial. However, was convinced, mainly

by defendants’ counsel’s arguments, that it had no other

alternative under the strength of the decisions by the First

Circuit Court of Appeals in United States v. Flannery,

supra, and Lussier v. Gunter, 552 F2d 385, 389, N. 2 (1st

Cir., 1977), but to declare a mistrial.

The Court in Flannery held the following:

‘‘In 1965 we held that for the government to say,

in summation to the jury, that certain of its evidence

was ‘uncontradicted’, when contradiction would have

required the defendant to take the stand, drew atten-

tion to his failure to do so, and hence was unconstitu-

tional comment. Desmond v. United States, 1 Cir.,

1965, 345 F.2d 225. We do not adopt the reasoning

of those courts which state, it seems to us, ingenu-

ously, that to say that the government witnesses’

testimony was uncontradicted is simply a statement

of historical fact. There are many ‘facts’ which are

benign in themselves. The difficulty is that such refer-

ence, when only the defendant could have contradicted,

clearly calls to the jury’s mind the fact that he failed

to testify. In spite of frequent repetition of this,

what would seem to us obvious conclusion, government

attorneys, either uninstructed, or unmindful of their

instructions, have persisted in ignoring our ruling.

In some published cases we have found prejudice and

reversed. In others, for special reasons, as when the

Court was quick to correct the error, we have found

3 Compare with United States v. Evers, 569 F2d 876 (5th Cir.,

1978).

20

no prejudice. As early as Desmond, however, we ex-

pressed our belief that the government would not make

such a comment, thereby risking reversal, unless it

thought the comment effective. Its persistence in so

doing, despite admonitions by trial judges as well as

ourselves, produces a sense of futility. Hereafter, as

to cases tried after the date of this opinion, when it is

apparent on the record that there was no one other

than himself whom the defendant could have called

to contradict the testimony, we shall not endeavor to

weigh prejudice, but shall rule it prejudicial as matter

of law, with a single exception. If the court interrupts

the argument, instructs the jury fully on the defend-

ant’s constitutional right not to testify and the jury’s

obligation not to draw unfavorable inferences and, in

addition, states to the jury that the U.S. Attorney was

guilty of misconduct, we may find no prejudice; other-

wise we will reverse.’’ (Footnotes omitted)

Such holding was interpreted in Lussier v. Gunter, supra,

as ‘‘[announcing] that in future cases we would reverse

a conviction where after a prosecutorial comment on a

defendant’s silence, the trial judge did not immediately

and sua sponte interrupt the argument to admonish the

prosecutor and instruct the jury’’. It thus appears that

in order for the ‘‘single exception’’ to the Flannery Rule

to become operative, and cure the prejudice so as not to

entail the declaration of a mistrial, three requirements

must be met: first, that the Court immediately and sua

sponte interrupts the argument; secondly, that the Court

instructs the jury on the defendant’s constitutional right

not to testify and on the jury’s obligation not to draw

unfavorable inferences therefrom; and, thirdly, that the

Court admonishes the prosecuting attorney for being guilty

of misconduct.

21

Since the Court did not interrupt sua sponte the prose-

cuting attorney’s summation argument when the preju-

dicial comment was made, but it was counsel for the

defendants that had to call the Court’s attention to the

same; then, it was precluded from giving the cautionary

instruction carved out froin Flannery as the ‘‘single excep-

tion’? to the mandatory declaration of a mistrial when a

defendant’s constitutional right to remain silent is com-

mented by the prosecution. Accordingly, a mistrial was

declared; and the Court then proceeded to set the case for

retrial, however, defendants have moved the Court to dis-

miss the indictment alleging that the same is precluded by

the Double Jeopardy Clause of the Fifth Amendment to

the Constitution of the United States.

The general principles regarding the applicability of the

Double Jeopardy Clause to situations wherein a mistrial

has been declared have been made clear by recent decisions

of the Supreme Court. (See 77 ALR 3d 1143). The bar

of the double jeopardy clause protects an accused against

multiple prosecutions for the same offense. Barks v. United

States, 437 US 1 (1978). Once jeopardy attaches* a de-

- fendant has a ‘‘valued right to have his trial completed

by a particular tribunal, ...’’. Wade v. Hunter, 336 US

684, 689 (1949); United States v. Jorn, 400 US 470, 481

(1971); Illinois v. Somerville, 410 US 458, 466 .(1973) ;

Arizona v. Washington, 434 US 497, 503 (1978). Notwith-

standing, a defendant’s right to have his trial completed

is not absolute. Since the threshold decision in United

States v. Perez, 9 Wheat (22 US) 579 (1824) it was estab-

lished that the double jeopardy clause does not bar a new

trial after a mistrial has been declared when there is a

‘manifest necessity’’ for such a declaration or ‘‘the ends

* Jeo attachés at the empaneling and swearing in of the

_ ary. Orit 6 Bretz, 437 US 28 (1978) ; Downum v. United States,

372 US 734 (1963).

ee:

22

of public justice would otherwise be defeated’’. Arizona

v. Washington, 434 US 506.5 Ordinarily, a mistrial de-

clared upon a defendant’s request or with his consent will

not bar his retrial. United States v. Scott, 4837 US 82, 93

(1978) ; Lee v. United States, 4832 US 23, 32 (1977). The

fundamental policy of the double jeopardy clause is to

prevent ‘‘government-induced’’ multiple prosecutions for

the same crime. United States v. Scott, 4837 US 92. The

Supreme Court has recognized that there may be situations

when a defendant requests a mistrial and a retrial would

be barred by the double jeopardy clause. Such situations

arise when there has been ‘‘prosecutorial overreaching”’

and a defendant is left with no other reasonable choice

but to request a mistrial. United States v. Jorn, 400 US

470 (1971); United States v. Dinitz, 424 US 600 (1976);

United States v. Kessler, 530 F2d 1246 (5th Cir., 1976).

The leading case is the Supreme Court decision in U. S. v.

Dinitz, supra, at page 608, wherein the Court held that:

‘*The distinction between mistrials declared by the

Court sua sponte and mistrials granted at the de-

fendant’s request or with his consent is wholly consis-

tent with the protections of the. Double Jeopardy

Clause. Even when judicial or prosecutorial error

prejudices a defendant’s prospects of securing an ac-

quittal, he may nonetheless desire ‘‘to go to the first

jury and, perhaps, end the dispute then and there with

an acquittal’’. United States v. Jorn, supra, at 484.

Our prior decisions recognize the defendant’s right

to pursue this course in the absence of circumstances

of manifest necessity requiring a sua sponte judicial

declaration of mistrial. But it is evident that when

* Requirement of a ‘‘high degree’’ of necessity to order a mis-

trial becomes operative when the defendant objects to the same.

~_ rear v. helps 593 ar: 415, 417 (1st Cir., 1979) and cases

ci erein ; wick v. Superior Court for the District

Colwmbia, 584 F2d 1044 N. 5 (D.C. Cir. 1978), scigeed

23

judicial or prosecutorial error seriously prejudices a

defendant, he may have little interest in completing

the trial and obtaining a verdict from the first jury.

The defendant may reasonably conclude that a con-

tinuation of the tainted proceeding would result in a

conviction followed by a lengthy appeal and, if a

reversal is secured, by a second prosecution. In such

circumstances, a defendant’s mistrial request has ob-

jectives not unlike the interests served by the Double

Jeopardy Clause—the avoidance of the anxiety, ex-

pense, and delay occasioned by multiple prosecutions. ”’

A finding of prosecutorial overreaching requires that

the prosecutor’s misconduct be the result of gross negli-

gence, intentional misconduct; United States v. Crouch,

566 F2d 1311, 1318 (5th Cir., 1978), or bad faith. U. 8S. v.

Rumpf, 576 F2d 818, 822 (10th Cir., 1978). Mere negligence

is not enough. U.S. v. Crouch, 566 F2d 1318 N 9. The

misconduct must be so serious that the defendant must

move for a mistrial as the only alternative to an assured

conviction. United States v. Bobo, 586 F2d 355, 365 N. 11

_ (5th Cir., 1979), Cf. United States v. Kessler, supra.

The comment made by the prosecuting attorney was

made in a low-keyed, monotonous voice. As stated before,

the record will reflect that this Court did not hear the

statement. Also, the comment was made after the prose-

cuting attorney had already gone over the evidence pre-

sented at trial against several of the defendants, and

which had already included referring to Dr. Roura’s and

Dr. Carresquillo’s testimony, but had not referred to their

testimony as being uncontroverted. The statement was

made only once and in a dispassionate manner. The Court

thus believes that the comment made by the prosecuting

attorney in its context was not made in bad faith and was

not so serious as to assure a conviction. U. 8. v. Goldman,

563 F2d 501, 505 (1st Cir., 1977); U. 8. v. Nelson, 582 F2d

24

1246 (10th Cir., 1978); United States v. MacDonald, 455

F2d 1259, 1262 (1st Cir., 1972) The Court, however,

ordered the mistrial based on its interpretation of the

Flannery rule established by the First Circuit in the exer-

cise of its supervisory powers and not because it felt that

the defendants had been gravely prejudiced.®

Therefore, the Court finds that the mistrial was properly

declared as the same was ordered after due consideration

of the available alternatives and correct interpretation of

the law.” Consequently, a retrial of the defendants is not

barred by the double jeopardy clause. United States v.

MacQueen, 596 F2d 76, 82 (2d Cir., 1979).

In view of the foregoing, defendants’ motion to dismiss

the indictment is hereby DENIED.

SO ORDERED.

San Juan, Puerto Rico, July 22, 1979.

(s) Hernan G. Pesquera

U.S. District Judge

8 See Illinois v. Somerville, 410 US 458, 465 (1973) wherein the

Court held that ‘‘(a) trial judge properly exercises his discretion

to declare a mistrial if an impartial verdict cannot be reached, or if

@ verdict of conviction could be reached but would have to be re-

versed on appeal due to an obvious procedural error in the trial...’’.

(Emphasis ours)

7 See: United States v. Klein, 582 F2d 186, 191, 195 (2d Cir.,

1978) ; United States v. Nelson, 582 F2d 1246; 1249 (10th Cir.,

1978) ; United States v. McKoy, 448 F. Supp. 826, 831 (E.D. Pa.,

1978) and compare with United States v. Starling, 571 F2d 934, 941

N. 10 (5th Cir., 1978).

papa CG AOLT OT nit

ADIL: mil

United States Court of Appeals

For the First Circuit

No. 79-1394. SEP TLO nl

Untrep States or AMERIOA,

APPELLEE,

v.

Moises BENMAMAN,

DEFENDANT, APPELLANT.

No. 79-1399. iT-0T oY

Untiep States or AMERIOA,

APPELLEE,

v.

Hector. G. Ropricurez-Martinez,

DEFENDANT, APPELLANT.

- No. 79-1400.

Unrrep States or AMEBIOA,

APPELLEE, 7:

v. phe So vn

‘Zornaipa' Quintana De Lara,

DEFENDANT; APPELLANT.

No..79-1401. ae

' +. 9 1.,Uwrrep Srates or AMERIOA, °

APPELLEE,

v.

FREDERICK J. GONZALEZ,

DEFENDANT, APPELLANT.

6

No. 79-1402. a

Unrrep States or AMERICA,

APPELLEE,

. v. fr

Watres Nizves-Matponapo,

‘.- DEFENDANT, APPELLANT. * ~

. “<4

No. 79-1403. :

Untrrep States or AMERICA;

APPELLEE,

?.

Jesus Rivera OTERO,

DEFENDANT, APPELLANT.

No. 79-1509.

Untrep States or AMERICA,

APPELLEE,

v.

~ Emo Rammez Koat,

DEFENDANT, APPELLANT.

ORDER OF COURT

Entered February 14; 1980

Upon consideration of motion of appellants requesting

atay of Mandate, |

It is ordered that said motion is hereby denied.

By the Court:

(s) Dawa H. Gatuuvp, Clerk.

(ec: Bryson, Antonetti, Toro, Mangual Lopez, Garcia-

Gutierrez, Anduze Montano, Nachman and Garcia. ]